EXHIBIT 10.11


 


NEITHER THIS
WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  NO SALE, TRANSFER OR OTHER DISPOSITION OF
THIS WARRANT OR SAID SHARES MAY BE EFFECTED WITHOUT (i) AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, OR (ii) AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT IS AVAILABLE.


 


 




	
  Warrant

  	
   

  	
   

  	
   

  	
  No. of

  
	
  No. 101

  	
   

  	
  STOCK PURCHASE WARRANT

  	
   

  	
  Shares  76,000

  






 


To Subscribe for and Purchase Common Stock of


 


BOSTON RESTAURANT ASSOCIATES, INC.


 


THIS CERTIFIES
that, for value received, Commerce Bank and Trust Company of Boston, MA
(together with any subsequent transferees of all or any portion of this
Warrant, the “Holder”), is entitled, upon the terms and subject to the
conditions hereinafter set forth, to subscribe for and purchase from Boston
Restaurant Associates, Inc., Inc., a Delaware corporation (hereinafter called
the “Company”), at the price set forth in Section 2, up to 76,000 fully paid
and nonassessable shares of the Company’s common stock, $.01 par value per
share, subject to adjustment as set forth in Section 6 (the “Shares”),


 


1.             Definitions.  As used herein the following term shall have
the following meaning:


 


“Act”
means the Securities Act of 1933 as amended, or a similar Federal statute and
the rules and regulations of the Commission issued under that Act, as they each
may, from time to time, be in effect.


 


“Commission”
means the Securities and Exchange Commission, or any other Federal agency at
the time administering the securities laws of the United States.


 


“Registration
Statement” means a registration statement (other than a registration
statement on Form S-8 solely with respect to employee benefit plans, or on Form
S-4 solely with respect to Rule 145 transactions, or a registration statement
for an exchange offer solely to the Company’s stockholders, or any successor
form or forms used for the purposes specified by such forms) filed by the
Company with the Commission under the Act for a public offering and sale of
securities of the Company.


 


“Shares”
means the 76,000 shares of the Company’s Common Stock issued or issuable to the
Holder upon the exercise of this Warrant (or such other number as adjusted
pursuant to Section 6 hereof) and any other shares of Common Stock of the
Company issued with respect to such shares


 

















 


(because of stock splits, stock
dividends, reclassifications, recapitalizations, mergers, consolidations, or
similar events); provided, however, that any shares subject to this Warrant
previously sold by the Holder to the public pursuant to a registered public
offering or Rule 144 under the Act shall cease to be within the definition of
“Shares” as used herein.


 


2.             Purchase Rights.  The purchase rights represented by this
Warrant entitle the holder to purchase Shares at an exercise price of $0.50 per
share.  The Warrant is exercisable by
the Holder, in whole or in part, at any time and from time to time, commencing
on the first anniversary of the date hereof and ending at 5:00 p.m. on the
sixth anniversary of the date hereof. 
..  Notwithstanding the preceding
sentence, the Warrant may be exercised prior to the first anniversary of the
date hereof: (i) in the event that there is an Event of Default under the Loan
Agreement between the Company and Commerce Bank & Trust Company dated April
30, 2002, as amended; (ii) in the event of a transaction or related series of
transactions which result in (A) a sale of substantially all of the assets of
the Company other than in the ordinary course of business, or (B) a merger of
the Company with another corporation or other entity in which the Company is
not the surviving entity or in which it is the surviving entity but former
stockholders of the Company end up with less than a majority of the voting and
economic interest in the surviving entity; or (ii) in the event of a
recapitalization of the capital structure of the Company (but not a simple
stock split, reverse stock split or stock dividend).


3.             Exercise of Warrant.  Subject to Section 2 above, the purchase
rights represented by this Warrant may be exercised, in whole or in part and
from time to time, by the surrender of this Warrant and the duly executed
Notice of Exercise (the form of which is attached as Exhibit A) at the
principal office of the Company and by the payment to the Company, by check, of
an amount equal to the then applicable Warrant Exercise Price per share
multiplied by the number of Shares then being purchased.  Upon exercise, the Holder shall be entitled
to receive, as promptly as possible, one or more certificates issued in the
Holder’s name or in such name or names as the Holder may direct for the number
of Shares so purchased.  The Shares so
purchased shall be deemed to be issued as of the close of business on the date
on which this Warrant shall have been exercised.


 


4.             Shares to be Issued; Reservation
of Shares. The Company covenants that the Shares that are issued upon the
exercise of the purchase rights represented by this Warrant and payment of the
exercise price will, upon issuance, be fully paid and nonassessable, and free
from all liens and charges with respect to the issue thereof.  During the period within which the purchase
rights represented by the Warrant may be exercised, the Company will at all
times have authorized and reserved, for the purpose of issuance upon exercise
of the purchase rights represented by this Warrant, a sufficient number of
shares of its Common Stock to provide for the exercise of the right represented
by this Warrant.


 


5.             No Fractional Shares.  No fractional shares shall be issued upon
the exercise of this Warrant.  In lieu
thereof, a cash payment shall be made equal to such fraction multiplied by the
fair market value of such shares of Common Stock, as determined in good faith
by the Company’s Board of Directors.


 


6.             Adjustments of Warrant Purchase
Price and Number of Shares.  If
there shall be any change in the Common Stock of the Company through merger,
consolidation, reorganization, recapitalization,


 

















 


stock dividend, stock split or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors of the Company (or if the Company is
not the surviving corporation in any such transaction, the board of directors
of the surviving corporation) in the aggregate number and kind of shares
subject to this Warrant, and the number and kind of shares and the price per
share then applicable to shares covered by the unexercised portion of this
Warrant.


 


7.             Piggyback Registration Rights.  The Company agrees as follows:


 


(a)           If the Company shall determine to
register any shares of its Common Stock under the Act at any time and in
connection therewith the Company may lawfully register any of the Shares (other
than pursuant to a registration statement excluded from the definition of a
Registration Statement in Section 1), the Company will promptly give written
notice thereof to the Holder.  Upon the written
request of the Holder within 30 days after receipt of any such notice from the
Company, the Company will, except as herein provided, cause all of the Shares
which the Holder has requested to be registered to be included in such
Registration Statement, all to the extent requisite to permit the sale or other
disposition of the Shares.  However
nothing herein shall prevent the Company from at any time abandoning or
delaying any registration.


 


(b)           If any shares registered pursuant to
this Section shall be included in an underwritten public offering in whole or
in part, the Company may require that the Shares requested for inclusion
hereunder be included in the underwriting on the same terms and conditions as
the securities otherwise being sold through the underwriters.  If and in the event that the managing
underwriter of such public offering shall be of the opinion that inclusion of
all of the Shares would adversely affect the marketing of the securities to be
sold by the Company therein,  then the
number of Shares otherwise to be included in the underwritten public offering
may be reduced on a pro rata basis with the shares proposed to be included in
such offering by any other selling shareholder (exclusive of the Company).


 


(c)           The Holder hereof may not exercise
the rights granted in this Section to effect the registration of the Shares
under the Act prior to the first anniversary hereof.


 


(d)           Anything herein to the contrary
notwithstanding, the Company shall not be obligated to provide the foregoing
so-called “piggyback” registration rights on more than two occasions.


 


8.             Registration Procedures.  If and whenever the Company is required by
the provisions of Section 7 to effect the registration of the Shares under the
Act, the Company will:


 


(a)           prepare and file with the Commission
a Registration Statement with respect to such securities, and use its best
efforts to cause such Registration Statement to become and remain effective for
such period as may be reasonably necessary to effect the sale of such
securities, not to exceed three months;


 


(b)           prepare and file with the Commission
such amendments to such Registration Statement and supplements to the
prospectus contained therein as may be necessary to keep such Registration
Statement effective for such period as may be reasonably necessary to effect
the sale of such Shares, not to exceed three months; provided, however, that in
the event any amendment or


 

















 


supplement to a Registration
Statement is required to be filed pursuant to paragraph (g) of this Section 8,
and such filing results in the suspension of the effectiveness of such
Registration Statement, such three month period shall be extended by the period
during which the effectiveness of such Registration Statement has been
suspended.


 


(c)           furnish to the Holder participating
in such registration and to the underwriters of the securities being registered
such reasonable number of copies of the Registration Statement, preliminary
prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities;


 


(d)           use its reasonable efforts to
register or qualify the securities covered by such Registration Statement under
the state securities or blue sky laws of such jurisdictions as the Holder may
reasonably request within 20 days following the original filing of such
Registration Statement, except that the Company shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified;


 


(e)           notify the Holder promptly after it
shall receive notice thereof, of the time when such Registration Statement has
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;


 


(f)            notify the Holder promptly of any
request by the Commission for the amending or supplementing of such
Registration Statement or prospectus or for additional information;


 


(g)           prepare and promptly file with the
Commission and promptly notify the Holder of the filing of such amendment or
supplement to such Registration Statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Act, any event shall
have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances in which they were made, not misleading; and


 


(h)           advise the Holder, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such Registration
Statement or the initiation or threatening of any proceeding for that purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued.


 


9.             Unregisterable Shares.  Notwithstanding anything to the contrary
contained herein, the registration rights contained herein (both demand and
“piggyback”) shall not apply to any Shares which may be sold without
restriction pursuant to Rule 144(k) of the Act.


 


10.           Expenses.  All expenses in connection with, or
incidental to, the preparation and filing of any Registration Statement
pursuant to Section 7 hereof, any registration or qualification under
securities or blue sky laws of states in which the offering will be made, and
any filing fee of the National Association of Securities Dealers, Inc. (“NASD”)
relating to such offering, shall be borne by the Company (the “Company
Obligations”); provided, however, that the Holder shall bear


 

















 


its pro  rata
share of the underwriting discount and commissions, underwriting expense
allowances and transfer taxes, all reasonable documented fees and disbursements
of Holder’s counsel, and, to the extent required by applicable state securities
laws and NASD rules and regulations, all legal fees and disbursements and other
expenses of complying with state securities or blue sky laws of any
jurisdictions in which the Shares to be offered are to be registered or
qualified.


 


11.           Indemnification.


 


(a)           The Company will indemnify and hold harmless
the Holder and any underwriter (as defined in the Act) for such Holder and each
person, if any, who controls such Holder or such underwriter within the meaning
of the Act, from and against, and will reimburse such Holder and each such
underwriter and controlling person with respect to, any and all loss, damage,
liability, cost and expense to which such Holder or any such underwriter or
controlling person may become subject under the Act or otherwise, insofar as
such losses, damages, liabilities, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, damage,
liability, cost or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such Holder, such underwriter or such
controlling person in writing specifically for use in the preparation thereof.


 


(b)           The Holder will indemnify and hold
harmless the Company, its directors and officers, any underwriter and any
controlling person of such underwriter from and against, and will reimburse the
Company, underwriter or controlling person with respect to, any and all loss,
damage, liability, cost or expense to which the Company, any underwriter or any
controlling person thereof may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue or alleged untrue statement of any material fact contained in any
Registration Statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was so made in reliance upon written information furnished
by such Holder specifically for use in the preparation thereof.  The maximum liability for indemnification
hereunder of the Holder shall not exceed, in the aggregate, the aggregate
dollar amount of gross proceeds received by the Holder on account of the Shares
which are included in a Registration Statement pursuant to Section 7.


 


12.           Rights and Obligations Survive
Exercise and Expiration of Warrant. 
The rights and obligations of the Company and the Holder set forth in
Sections 7, 8, 10 and 11 shall survive the exercise and expiration of this Warrant.


 


13.           No Rights as Shareholders.  This Warrant does not entitle the Holder to
any voting rights or other rights as a shareholder of the Company prior to
exercise of this Warrant and the


 

















 


payment for the Shares so
purchased.  Notwithstanding the foregoing,
the Company agrees to transmit to the Holder such information, documents and
reports as are generally distributed to holders of the capital stock of the
Company concurrently with the distribution thereof to the shareholders.  Upon valid exercise of this Warrant and
payment for the Shares so purchased in accordance with the terms of the
Warrant, the Holder or the Holder’s designee, as the case may be, shall be
deemed a shareholder of the Company.


 


14.           Legend.  Each certificate representing any Warrant
shall bear the legend set out on page 1 hereof.  Each certificate representing any Shares shall bear a legend
substantially in the following form, as appropriate:


 


THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.  NO SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.


 


Such Warrant and Shares may be
subject to additional restrictions on transfer imposed under applicable state
and federal securities law.


 


15.           Right of First Refusal.


 


(a)           Voluntary Transfers.  No Holder may sell, assign, pledge or
otherwise dispose of any Shares into which this Warrant is convertible, or any
interest therein now held or hereafter acquired, in a private transaction, as
opposed to a trade consumed on NASDAQ or comparable system, without first giving
written notice to the Company (the “Notice of Proposed Transfer”).  The Notice of Proposed Transfer shall
include the name of the proposed transferee and all material terms of the
proposed transfer and, shall be accompanied by a copy of the bona fide written
offer to purchase such Shares upon the terms set forth in the Notice of
Proposed Transfer.  The Notice of
Proposed Transfer to the Company shall be deemed for all purposes to give the
Company a first right of purchase (sometimes referred to as a right of first
refusal) as provided herein.  If the
Company declines or fails to exercise its first right of purchase within 10
days after such Notice of Proposed Transfer, the Holder proposing to effectuate
such transaction may, within 30 days from the date said right terminates,
transfer the Shares to the proposed transferee upon the terms set forth in the
Notice of Proposed Transfer.


 


(b)           First Right of Purchase.  Upon receipt of the Notice of Proposed
Transfer, the Company shall have a right to purchase the Shares to which such
Notice relates at the price and in the manner specified herein before any other
action is taken to sell, assign, transfer, pledge, or otherwise dispose of the
Shares.  Such right shall continue for a
period of 10 days from the receipt of the Notice of Proposed Transfer.  If the Company elects to exercise its first
right of purchase, it shall so notify the Holder of the Shares on the terms and
conditions as are specified in such Notice and shall specify the time and place
for tender of certificates representing such Shares.


 


(c)           Transfers in Violation of Warrant.  If any transfer of Shares is made or
attempted


 

















 


contrary to the provisions of
this Warrant, or if Shares are not offered to the Company as required herein,
the Company shall have the right to purchase said shares from the owner thereof
or his transferee at any time before or after the transfer, as herein
provided.  In the event that the Company
elects to exercise its first right of purchase, it may do so by canceling the
certificate(s) representing the Shares and depositing the purchase price
determined hereunder in an interest bearing bank account for the benefit of
Holder, whereupon such Shares shall be, for all purposes, cancelled and neither
the Holder nor any transferee shall have any rights as one of its Holders with
respect to such Shares for any purpose, including without limitation dividend
and voting rights, until there has been compliance with all applicable
provisions of this Warrant.  In addition
to any other legal or equitable remedies which it may have, the Company may
enforce its rights by actions for specific performance (to the extent permitted
by law).


 


16.           Modifications and Waivers.
This Warrant may not be changed, waived, discharged or terminated except by an
instrument in writing signed by the party against which enforcement of the same
is sought.


 


17.           Notices. Any notice, request
or other document required or permitted to be given or delivered to the Holder
or the Company shall be delivered, or shall be sent by certified or registered
mail, postage prepaid, to the Holder at its address shown on the books of the
Company or to the Company at the address indicated therefor on the signature
page of this Warrant, or, if different, at the principal office of the Company.


 


18.           Loss, Theft, Destruction or
Mutilation of Warrant. The Company covenants with the Holder that upon its
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant or any stock certificate and, in the
case of any such loss, theft or destruction, of an indemnity or security
reasonably satisfactory to it, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate, of like tenor, in lieu of the lost,
stolen, destroyed or mutilated Warrant or stock certificate.


 


19.           Representations and Warranties of
Holder.  By accepting this Warrant,
the Holder represents and warrants that the Holder is acquiring this Warrant
and the Shares for such Holder’s own account, for investment and not with a
view to, or for sale in connection with, any distribution thereof or any part thereof.  Holder represents and warrants that such
Holder is (a) experienced in the evaluation of businesses similar to the
Company, (b) is able to fend for himself, herself or itself in the transactions
contemplated by this Warrant, (c) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Company, (d) has the ability to bear the economic
risks of an investment in the Company, (e) has been furnished with or has had access
to such information as is specified in subparagraph (b)(2) of Rule 502
promulgated under the Act and (f) has been afforded the opportunity to ask
questions of and to receive answers from the Company and to obtain any
additional information necessary to make an informed investment decision with
respect to an investment in the Company.


 


20.           Binding Effect on Successors.  This Warrant shall be binding upon any
corporation succeeding the Company by merger, consolidation or acquisition of
all or substantially all of the Company’s assets, and all of the obligations of
the Company relating to the Shares issuable upon


 

















 


exercise of this Warrant shall
survive the exercise and termination of this Warrant and all of the covenants
and agreements of the Company shall inure to the benefit of the successors and
assigns of the Holder.


 


21.           Sale or Transfer of the Warrant
and Shares.  Except as provided in
Section 16, and except for transfers to shareholders or officers, directors of
the Holder in accordance with applicable federal and state securities laws,
neither this Warrant nor the Shares, or any of them, may be sold, transferred,
pledged or otherwise conveyed, in whole or in part, by the Holder.  Any attempted conveyance by the Holder shall
be deemed void and of no effect except as provided in Section 15.


 


22.           Governing Law.  This Warrant shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of Delaware.


 


IN WITNESS
WHEREOF, BOSTON RESTAURANT ASSOCIATES, INC. has caused this Warrant to be
executed under seal by its officer thereunto duly authorized.


 


ORIGINAL ISSUANCE DATE:  February     , 2004


 


 


	
   

  	
  BOSTON
  RESTAURANT ASSOCIATES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  George R.
  Chapdelaine

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY’S
  ADDRESS:

  
	
   

  	
   

  
	
   

  	
  999
  Broadway, Suite 400

  
	
   

  	
  Saugus,
  Massachusetts 01906